The Volokh Conspiracy

An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied?

No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that:

On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary.

And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies).

Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war.

It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets.

This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him.

But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.

	[Eugene Volokh, July 6, 2004 at 8:25pm] Trackbacks Treason: An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied? No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that: On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary. And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies). Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war. It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets. This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him. But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.